King v Western Sydney Local Health Network [2013] NSWCA 162


TORTS – negligence – breach of duty owed by hospital to newborn child – mother attends hospital – risk of mother developing chicken pox while pregnant – breach – risk to mother and child if mother developed chicken pox – failure to advise mother of availability of VZIG and its potential beneficial effects in preventing or ameliorating chicken pox – failure to offer to administer VZIG – section 5B Civil Liability Act 2002 – breach established – TORTS – negligence – causation – section 5D(1)(a) Civil Liability Act – factual causation – whether appellant’s breach “necessary condition” of harm suffered – whether administration of VZIG would have prevented mother developing chicken pox and therefore child suffering injury – – negligence – causation – expert evidence – conflicting opinion of doctors as to efficacy of VZIG – status of available medical literature – effect of medical literature equivocal – limitations of available medical literature – statistical probability of VZIG being effective to protect child – negligence – causation – application of statistics provided by medical literature – equivocal nature of statistics – whether trial judge adopted an overly mechanistic approach to causation issue – whether too much weight placed on limitations of scientific evidence – whether as an “exceptional case” section 5D(2) of Civil Liability Act 2002.
David Cormack – Brisbane Barrister

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